Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: PA/03578/2015

THE IMMIGRATION ACTS

Heard at Newport (Columbus House)
Decision & Reasons Promulgated
On 17 January 2017
On 20 January 2017

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

N A
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr H Dieu instructed by Duncan Lewis, Solicitors
For the Respondent: Mr I Richards, Senior Home Office Presenting Officer

DECISION AND REASONS
1. Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the appellant. This direction applies to both the appellant and to the respondent and a failure to comply with this direction could lead to contempt of court proceedings.

Introduction
2. The appellant is a citizen of Algeria who was born on 3 September 1972. He is of Berber ethnicity. The appellant entered the United Kingdom on 5 February 2001. He claimed asylum on 4 February 2014.
3. The basis of his claim was his association with "MB" who was a prominent activist in the Berber movement in Algeria. The appellant claimed that in 1997 and 1998, MB had stayed with the appellant and his family during which time the appellant took care of MB. MB left him with confidential documents which he had subsequently hidden in Algeria and which were of interest to influential figures in Algeria. He claimed, as a consequence, to be at risk from them if he returned to Algeria.
4. On 2 December 2015, the Secretary of State refused the appellant's claims for asylum, humanitarian protection and on human rights grounds.
The Appeal to the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal. In a decision sent on 19 July 2016, Judge Richards-Clarke dismissed the appellant's appeal on all grounds. In particular, she made an adverse credibility finding and did not accept that the appellant had the association with MB as he claimed.
The Appeal to the Upper Tribunal
6. The appellant appeals to the Upper Tribunal on the single ground that the judge had failed properly to take into account the expert report of Mr David Seddon dated 13 June 2016.
7. On 8 August 2016, the First-tier Tribunal (Judge Grant-Hutchison) granted the appellant permission to appeal.
8. On 1 September 2016, the Secretary of State filed a rule 24 response seeking to uphold the judge's decision.
The Submissions
9. Mr Dieu, who represented the appellant adopted the ground of appeal and submitted that the judge had failed to give adequate reasons for, as the judge put it in para 25, "not attach[ing] weight to" the report. Mr Dieu challenged the judge's approach in para 24 where he said this:
"24. I find the Report of Mr Seddon to be limited as it is he did not interview the Appellant and it is primarily a general discussion and review of the Appellants claim. Mr Seddon reports what the Appellant has said and places this in the context of the background evidence. I find this to be insufficient to support the Appellant's claimed association with [MB] that he hid confidential documents that are wanted by political figures in Algeria."
10. Mr Dieu submitted that it was not a proper basis to reject the report on the ground that the appellant had not been interviewed. Mr Seddon, a recognised expert, did not suggest that he had insufficient information or that an interview was needed in assessing the appellant's claim. Further, it was wrong to characterise Mr Seddon's report as "primarily a general discussion" and, as the judge stated in para 39, only dealing with the issues raised in a "limited" way and "no[t] specific to the appellant's claim". Mr Dieu relied upon section 4 of Mr Seddon's report at pages 21-26 which dealt in detail with the appellant's claim and the circumstances upon which he relied.
11. Further, Mr Dieu submitted that the judge's finding in para 38 that it was not "plausible" that MB would arrange a long stay with the appellant and trust him with confidential documents and his personal care was specifically dealt with by Mr Seddon in para 4.15 of his report where he stated that the appellant's claimed involvement with MB was "at least plausible".
12. Mr Richards, who represented the Secretary of State submitted that the judge had not, as she appeared to say in para 25, attached no weight to Mr Seddon's report. In fact, the judge had considered the report at paras 21-23 and again at paras 38-39. Mr Richards submitted that Mr Seddon's report went no further than recounting the appellant's claim and saying that it was possible or plausible. Mr Richards submitted that the judge was entitled to take into account that Mr Seddon thought it was possible (at para 4.15) that MB stayed with the appellant but that it would be only for a brief time when the appellant claimed it was for, as the judge put it in para 38, "some time during 1997 and 1998". Mr Richards submitted that there was nothing in Mr Seddon's report which set out a firm evidential basis to justify the judge coming to a different conclusion from the one she reached. Mr Richards submitted that the judge had taken into account Mr Seddon's report and had reached sustainable findings.
Discussion
13. The judge dealt with Mr Seddon's report at paras 21-25 and 38-39. At 21-25 the judge said this:
"21. The Appellant relies on the Expert Report of Mr Seddon [at page 17-28 of the Appellant's bundle]. Mr Seddon did not interview the Appellant but reviewed the documents provided by the Appellant's representatives including the Asylum Screening Interview, letters Appellant's representative 30 May 2015 and 13 November 2015, the Appellant's medical documents and the decision dated 2 December 2015.
22. Mr Seddon's reports examines in general terms [MB] and his visit to Taguemount el Djedid Algeria in 1997 and the prominent Algerian figures mentioned by the Appellant - Mr Rebrab and Mr Mehenni. Mr Seddon finds that it is
'possible that [MB] stayed with [the appellant] and his family in Taguemount el Djedid when he made that final journey to Algeria, but it would have only been for a relatively brief time. The claim that he looked after [MB's] personal affairs and documents during this time is hard to substantiate, but is I would suggest at least possible.'
23. Mr Seddon also describes the position of the Berber in Algeria. Mr Seddon describes that the Berbers are still
'generally and widely subject to economic and social discrimination in Algeria, and may be harassed in specific context' but that 'For the most part, however, this discrimination does not reach the level where it may be regarded as persecution, if that is taken to imply a real risk of serious harm'.
"24. I find the Report of Mr Seddon to be limited as it is he did not interview the Appellant and it is primarily a general discussion and review of the Appellant's claim. Mr Seddon reports what the Appellant has said and places this in the context of the background evidence. I find this to be insufficient to support the Appellant's claimed association with [MB] that he hid confidential documents that are wanted by political figures in Algeria."
25. I do not find that Mr Seddon's report supports the Appellant's claim for international protection and I do not attach weight to it.
Then at 38-39 the judge said this:
"38. At the hearing before me it was the Appellant's evidence that [MB] stayed with his family for some time during 1997 and 1998 and that he was responsible for [MB's] personal care including washing, dressing and feeding. This contradicts Mr Seddon's finding that any stay with the Appellant and his family would be a short period. The Appellant does not claim to have any previous connection with [MB] or Berber activism and I do no find it plausible that [MB], a well-known Berber activist, would arrange a prolonged stay with the Appellant and his family and trust the Appellant not only with confidential documents, but also with all his personal care.
39. In the decision letter dated 2 December 2015 the Respondent has explained to the Appellant the reasons why his answers at interview did not support his claim and I find that the evidence brought forward by him does not support him because the expert report of Mr Seddon does not address these issues is limited and no specific to the Appellant's claim and in any event does not suggest that the treatment of Berbers in Algeria amounts to persecution."
14. Whilst the judge sets out extracts from Mr Seddon's report at paras 22 and 23 of her determination, at para 25 she clearly concludes that the report should be given no weight at all. Her reasons for doing so, set out in para 24, do not withstand scrutiny. The absence of an interview with the appellant does not appear to have any relevance to the opinions expressed by Mr Seddon, in particular, as to the plausibility of aspects of the appellant's account as to his involvement with MB as claimed. Likewise, although Mr Seddon's report deals with the general country background, it clearly deals with the respondent's decision in some detail in section 4 at pages 21-25. In particular, based upon his expertise and knowledge, Mr Seddon accepts that it is possible or plausible that the appellant met MB as claimed in his home village and that he stayed with the appellant and that the appellant took care of him and may have left confidential documents with him. Mr Seddon's report was, therefore, highly relevant to the plausibility of the core of the appellant's claim. It was not a report that could be dismissed out of hand as entitled to no weight.
15. Although Mr Richards submitted that the judge had in fact taken into account Mr Seddon's report, I do not agree. Although the judge does, of course, refer and indeed sets out parts of Mr Seddon's report, she clearly considered that it did not assist or support the core of the appellant's claim. She said so in terms in paras 24 and 39. In truth, it did provide some support.
16. In particular, subject to one point, it provided support for the plausibility or possibility that MB stayed with the appellant and left him with confidential documents (see para 4.15 of the report). In para 38 of her determination, the judge found that this was not plausible contrary to the view of the expert. Mr Richards submitted that the expert had only found plausible a stay for a "relatively brief time". The judge had made reference to that in para 38 and it was a valid reason for not accepting the appellant's account for a stay "some time during 1997 and 1998".
17. In her determination, the judge does not specifically set out the appellant's evidence as to the claimed length of stay by MB. The refusal letter (at para 14) refers to a stay of "3-4 months". If this evidence was in the judge's mind, she clearly concluded that it was inconsistent with Mr Seddon's opinion that any stay would be for a "relatively brief time". Any such inconsistency does not appear to be a matter which was explored in the evidence before the judge. It is not a point directly addressed or raised by Mr Seddon so as to undermine his opinion that the appellant's claim is plausible (see paras 4.14 and 4.15 of his report). and I would not consider the evidence necessarily inconsistent without more.
18. In my judgment, the judge has failed properly to take into account the expert report of Mr Seddon. It was not determinative of the appellant's credibility but it was relevant to it and provided some support for the credibility of the appellant's account, in particular that cores aspects of it were plausible. In that regard, therefore, I am satisfied that the judge erred in law in reaching her adverse credibility finding.
19. In my judgment, that error was material to the judge's adverse credibility finding despite the other reasons she gave for it, namely that the appellant had not mentioned MB in his screening interview (para 37) and the thirteen-year delay in the appellant claiming asylum in the UK (paras 40-46). I am unable to say that the judge's decision would inevitably have been the same had she properly taken into account Mr Seddon's expert report.
Decision
20. For these reasons, the First-tier Tribunal's decision to dismiss the appellant's appeal involved the making of an error of law. That decision cannot stand and is set aside.
21. Given the nature and extent of fact finding required, and having regard to para 7.2 of the Senior President's Practice Statement, it is appropriate to remit this appeal to the First-tier Tribunal for a de novo rehearing before a judge other than Judge Richards-Clarke.

Signed

A Grubb
Judge of the Upper Tribunal

Date: